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dent representative to the Secretary of It is argued that, the Canadian act War.

governing only the Canadian side, its By chap. 666 of the Laws of New York adoption by New York carried the oblifor 1915, the charter [130] of the com- gation no farther. But it appears to us pany was amended so as to require the that it would be quibbling with the construction of a roadway for vehicles rational understanding of the duty asand a pathway for pedestrians upon sumed to say that the company could the draw across Black Rock harbor, the have supposed that it had a contract or company being allowed to charge tolls property right to confine its building of not exceeding specified sums. The com- the footpath and carriageway to the pany failed to comply with the require- Canada side of the boundary line. ment, and the time limit had expired The New York legislature of course before this suit was brought to recover confined its command to the half of the penalties imposed by the act. It is bridge within its jurisdiction. It may found that the construction was neces- be presumed that, if that command is sary for the public interest and con- obeyed, either Canada or the company venience; that the cost of the changes is will see the propriety of carrying the insignificant in comparison with the way and path across to the other shore. assets and net earnings of the company, At all events, the power of New York to and that it does not appear that the in- insist upon its rights is not limited by vestment would not yield a reasonable speculation upon that point. As we return.

agree with the court of appeals that this The first objections to the new require amendment to the charter was within the ment made by the state are that it im- power reserved to the state, the objecpairs the obligation of the contract in tion under the contract clause of the the original charter and takes the Constitution of course must fail, and, it company's property without due process would seem, that under the 14th Amendof law. The argument is based partly ment also. But, as to the latter, we may upon a reduction of the tolls from those add, as the court of appeals added, that mentioned in the charter of 1857, made there is nothing to show that the addiby the Act of 1915. Concerning this it tion to the structure will not yield a reais enough to say that the objection is sonable return, if that be essential, in premature. The clause relating to the view of the charter. Missouri P. R. Co. construction of the roadway and path- v. Kansas, 216 U. S. 262, 54 L. ed. 472, way is distinct from and independent of 30 Sup. Ct. Rep. 330; Chesapeake & 0. that which fixes the maximum rates to R. Co. v. Public Service Commission, 242 be charged. The latter might be invalid U. S. 603, 61 L. ed. 520, 37 Sup. Ct. Rep. and the former good. If the rates are 234. too low, they can be changed at any The only argument that impresses us, time. The only question now before us and the one that was most pressed, is is whether the additions shall be built. that this is an international bridge, and As to that, it would be going very far that Congress has assumed such control in the way of limiting the reserved of it as to exclude any intermeddling by right to amend such charters, if it the state. It is said that [132] the should be held that the state had not bridge as constructed was and is depower to require what originally was voted wholly to international contemplated in permissive words as merce, and that when Congress authorpart of the scheme. But, however that ized it in that form in 1874, that might be, the New York act authorizing authority must be regarded as the charconsolidation subjected this consolidat- ter under which it was maintained. ed corporation to the duties of the Ca- Without repeating the considerations nadian as well as of the New York char- urged in support of this conclusion ter, and the Canadian act made the ar- we will state the reasons that prerangement for foot passengers and car- vail with us. The part of the structure riages a duty. The words that we have with which we are concerned is within quoted plainly impose one. The [131] the territorial jurisdiction of the state opinion in Atty. Gen. v. International of New York. There was no exercise of Bridge Co. 6 Ont. App. Rep. 537, the power of eminent domain by the 543, implies that they do so by speak- United States. The state was the source ing of the abandonment of a por- of every title to that land, and, apart tion of the work as probably an abuse from the special purposes to which it of the act of Parliament, and the same might be destined, of every right to use is clearly stated in Canada Southern R. it. Any structure upon it, considered Co. v. International Bridge Co. L. R. merely as a structure, is erected by the 8 App. Cas. 723, 729.

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qualifications of ownership are decided further condition of getting from Conby the state, and although certain super-gress consent to action upon the grant. vening uses consistent with those quali- No doubt, in the case of an interna'fications cannot be interfered with by tional bridge the action of a state will be the state, still the foundation of a right scrutinized in order to avoid any possito use the land at all must be laid by ble ground for international complaint, state law. Not only the existence of the but the mere fact that the bridge was of company, but its right to build upon that nature would not, of itself, take New York land, came from New York, away the power of the state over its as was recognized by the form of the part of the structure if Congress were original Act of Congress of 1870, which silent, any more than the fact that it speaks of any bridge built "in pursu- was a passageway for interstate comance of” the New York statutes. It did merce, or crossed a navigable stream. not, as perhaps the New York Consoli- When Congress has acted, we see no readation Act did, refer to those statutes son for not leaving the situation as Consimply as documents, and incorporate gress has seemed to leave it, if, on the them, -it referred to them as the source most critical examination, we discover of the company's power.

no intent to withdraw state control, but, From an early date the state has been on the contrary, an assumption that the recognized as the source of authority, in control is to remain. We have adverted the absence of action by Congress. Will to the implications of the general Law son v. Black Bird Creek Marsh Co. 2 of 1899, and have mentioned the statutes Pet. 245, 7 L. ed. 412; Escanaba & L. M. that deal specifically with [134] this Transp. Co. v. Chicago, 107 U. S. 678, bridge. The Act of 1874, declaring 27 L. ed. 442, 2 Sup. Ct. Rep. 185. And the existing bridge lawful, was a conthis court has been slow to interpret firmation which it natural to such action as intended to exclude the seek, but was not a repeal of the ausource of rights from all power in the thority given to the company in 1870 premises. In a case of navigable waters to build subject to the approval of wholly within a state, over which a the Secretary of War. right of way had been conveyed to the structure has been rebuilt since 1874, United States, and which the United and the Secretary of War twice has States

spending considerable approved plans showing the carriage [133] sums to improve, it was held and footways. It is true that the that, whether or not Congress had company never has sought to execute power to authorize private persons that part of the plan, but, on the facts to build in such waters without the that we have stated, it appears to us a consent of the state, an act making strange contention that it has contract comprehensive regulations of work or property rights not to be required to within them did not manifest a pur- | build the bridge, or that Congress by pose to exclude the previously exist implication has forbidden the state to ing authority of the state over such demand that the plan recognized by work. Cummings v. Chicago, 188 U. S. everyone from the beginning should at 410, 413, 428, et seq., 47 L. ed. 525, 527, last be carried out. 530, 23 Sup. Ct. Rep. 472.

The conveyance of a part of the land But it is said that a different rule ap- under the bridge to the United States plies to an international stream, and for a public purpose not connected with that Congress has recognized the dis- the administration of the government did tinction by the Act of March 3, 1899, not affect the authority of New York chap. 425, $ 9, 30 Stat. at L. 1151, Comp. over the residue within the state, and, Stat. $ 9971, 9 Fed. Stat. Anno. 2d ed. taken in connection with the acts of the p. 81. It is true that that statute makes government before and after the grant, a distinction, but the distinction is that does not invalidate the Statute of 1915, bridges may be built across navigable even in part. See Cummings v. Chicago, waters wholly within the state, if ap- 188 U. S. 410, 413, 47 L. ed. 525, 527, 23 proved by the Chief of Engineers and Sup. Ct. Rep. 472; Ft. Leavenworth R. the Secretary of War, but, with regard Co. v. Lowe, 114 V. S. 525, 29 L. ed. 264, to waters not wholly within the state, 5 Sup. Ct. Rep. 995; Omaechevarria v. only after the consent of Congress has | Idaho, 246 U. S. 343, 346, 62 L. ed. 703, been obtained. The act does not make 767, 38 Sup. Ct. Rep. 323. Congress the source of the right to build, Judgment aflirmed. but assumes that the right comes from another source; that is, the state. It The CHIEF JUSTICE, Mr. Justice merely subjects the right supposed to McKenna, and Mr. Justice McReynolds have been obtained from there to the dissent.

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(135) GEORGE D. HORNING, Petitioner, , especially upon his intention in the

premises. DISTRICT OF COLUMBIA.

Swift v. Rounds, 19 R. I. 527, 33

L.R.A. 561, 61 Am. St. Rep. 791, 35 Atl. (See S. C. Reporter's ed. 135–140.) 45.

The relation in law of defendant to Criminal law-intent -- construction of statute.

pledges taken by him as security for 1. The intention of the accused to loans made by him is clearly defined keep within the law will not help him if and accurately described in a work of in fact he violated such law.

accepted authority. [For other cases, see Criminal Law, 1. d, in

21 R. C. L. 651, 652, 663, 664. Digest Sup. Ct. 1908.)

What is meant by engaging in a busiPawnbrokers doing business in District of Columbia.

ness is clearly settled; it does not de2. A pawnbroker who stores his pledges note a single act or transaction, but the in the city of Washington, and uses a aggregation of acts or transactions perWashington office as a collecting center, is taining to, and in fact constituting, doing a pawnbroking business within the such business; it is continuous in its District of Columbia, within the purview of character, and is synonymous with the Act of February 4, 1913, forbidding the employment or occupation; signifying doing of business as a pawnbroker and that which occupies the time, attention, charging more than 6 per cent interest with

and labor of a man for the purpose of out a license, although care is taken to receive all applications for loans, and to make gaining a livelihood or profit. all examinations of pledges, at an oflice

Hoagland v. Segur, 38 N. J. L. 237; established by him in Virginia, just outside Delaware & H. Canal Co. v. Mahlenthe District of Columbia.

brock, 63 N. J. L. 281, 45 L.R.A. 538, Appeal reversible error directing 13 Atl. 978; Sterne v. State, 20 Ala. verdict criminal case.

46; Martin v. State, 59 Ala. 36, 3 Am. • 3. A Federal judge did not commit re- Crim. Rep. 287. versible error, in a criminal case in which

It was palpable error in the police the undisputed facts, as testified to by both court in instructing the jury to assume, the witnesses for the government and the

as it did, that the suspicion or prededefendant, show the latter's guilt, in telling the jury in effect to find othe' defendant termination of the court below, on the guilty, so long as the jury was allowed the mere specification of the acts, and in technical right to decide against the law the absence of evidence, was conclusive and the facts. If the defendant suffered of the matter, and forestalled and canany wrong, it was of such a purely formal celed the right and duty of the jury to character as not to afford, since the Act of determine for itself the question of deFebruary 26, 1919, a basis for reversing the fendant's good faith in the light of the judgment of the lower court.

evidence. (For other cases, see Appeal and Error, VIII. m, 6, in Digest Sup. Ct. 1908.)

Masters v. United States, 42 App.

D. C. 353, Ann. Cas. 1916A, 1243; (No. 77.)

Sparf v. United States, 156 U. S. 51,

39 L. ed. 343, 15 Sup. Ct. Rep. 273, 10 Argued November 8 and 9, 1920. Decided

Am. Crim. Rep. 168.
November 22, 1920.

Mr. Robert L. Williams argued the N WRIT of Certiorari to the Court P. H. Marshall filed a brief for re

cause, and Messrs. F. H. Stephens and of Appeals of the District of Colum

spondent. bia to review a judgment which affirmed a conviction in the Police Court of the

[136] Mr. Justice Holmes delivered District of doing business as a pawn-the opinion of the court: broker without a license. Allirmed. See same case below, 48 App. D. C. certiorari granted to review a judgment

This case comes here upon a writ of 380. The facts are stated in the opinion.

of the court of appeals that affirmed a

conviction of the petitioner of doing Mr. Henry E. Davis argued the cause business as a pawnbroker and charging and filed a brief for petitioner: more than 6 per cent interest, without a

The question whether acts charged license, which is forbidden by the Act of apon a defendant constitute an inten-Congress of February 4, 1913, chap. 26, tional but unsuccessful endeavor to 37 Stat. at L. 657. 48 App. D. C. 380. avoid the operation of a law, or even to

The external facts are not disputed. evade it, turns not only upon the acts The defendant had been in business as a done by the defendant, but also and pawnbroker in Washington; but, anticipating the enactment of the present law,, a collecting center, it does not matter removed his headquarters to a place in that care is taken to complete every legal Virginia at the other end of a bridge transaction on the other side of the Poleading from the city. He continued to tomac. We cannot suppose that it was use his former building as a storehouse intended to allow benefits so similar to for his pledges, but posted notices on his those coming from business done wholly office there that no applications for loans in the city to be derived from acts done would be received or examination of there and yet go free. We are of opinion pledges made there. He did, however, that, upon the undisputed evidence, the maintain a free automobile service from defendant was guilty of a breach of the there to Virginia, and offered to intend law, and turn at once to the question ing borrowers the choice of calling upon which seemed to warrant allowing the him in person or sending their applica-case to be brought to this court. tion and security by a dime messenger The question relates to the charge of service not belonging to him, but estab- the judge. The judge said to the jury lished in his Washington building. If that the only question for them to dethe loan was made, in the latter case the termine was whether they believed the money and pawn ticket were brought concurrent testimony of the witnesses back and handed to the borrower in for the government and the defendant, Washington. When a loan was paid off, describing the course of business that we the borrower received a redemption cer- have stated, and as to which there was tificate, presented it in Washington, and no dispute. Those facts, [138] he corgot back his pledge. The defendant esti- rectly instructed them, constituted an mated the number of persons applying engaging in business in the District of to the Washington office for loans or Columbia. This was excepted to and redemption at fifty to seventy-five a day. the jury retired. The next day they His Washington clerk, a witness in his were recalled to court, and were told behalf, put it at from seventy-five to one that there really was no issue of fact hundred. We may take it that there for them to decide; that they were was a fairly steady stream of callers, as not warranted in capriciously saying is implied by the automobile service be- that the witnesses for the government ing maintained. It is said with refer- and the defendant were not telling ence to the charge of the judge, to which the truth; that the course of dealwe shall advert, that there was a ques-ing constituted a breach of the law; tion [137] for the jury as to the de- that it was their duty to accept this exfendant's intent. But we perceive none. position of the law; that, in a criminal There is no question that the defendant case, the court could not peremptorily intentionally maintained his storehouse instruct them to find the defendant and managed his business in the way guilty, but that, if the law permitted, he described. It may be assumed that he would. The court added that a failure intended not to break the law, but only i to bring in a verdict could only arise to get as near to the line as he could, from a flagrant disregard of the eviwhich he had a right to do; but if the dence, the law, and their obligation as conduct described crossed the line, the jurors. On an exception being taken, the fact that he desired to keep within it judge repeated that he could not tell will not help him. It means only that he them in so many words to find the demisconceived the law.

fendant guilty, but that what he said As to whether the conduct described amounted to that; that the facts proved did contravene the law, it is urged that were in accord with the information, a pledgee has a right to keep the and that the court of appeals had said pledged property where he likes and as that that showed a violation of law. he likes, provided he returns it in proper This was not a case of the judge's condition when redeemed. But that expressing an opinion upon the evidence, hardly helps the defendant. To keep for as he would have had a right to do. return, whatever latitude there may be Graham v. United States, 231 U. S. 474, as to place and mode, is part of the duty | 180, 58 L. ed. 319, 324, 34 Sup. Ct. Rep. of a pledgee, and, in the case of one whe 118. The facts were not in dispute, and makes a business of lending on pledges, what he did was to say so, and to lay is as much a part of his business as mak-down the law applicable to them. In ing the loan. As we read the statute, it such a case obviously the function of the prohibition is not confined to cases where jury, if they do their duty, is little more the whole business is done in Washing than formal. The judge cannot direct a ton. If an essential part of it is done verdict, it is true; and the jury has the there and a Washington office is used as power to bring in a verdict in the teeth

a

of both law and facts. But the judge N. S. 40, 18 L. T. N. S. 152, 16 Week. always has the right and duty to tell Rep. 544. them what the law is upon this or that (140] The character of the charge state of facts that may be found, and he in this case is illustrated by the followcan do the same none the less when the ing paragraph: facts are agreed. If the facts are agreed, "In conclusion I will say that a failure the judge may state that fact also; and to bring in a verdict in this case can when there is no dispute, he may say so, arise only from a wilful and flagrant disalthough there has been no formal agree- regard of the evidence and the law as I ment. Perhaps there was a regrettable have given it to you, and a violation of peremptoriness of tone, [139] but the your obligation as jurors. Of course, jury were allowed the technical right, if gentlemen, I cannot tell you in so many it can be called so, to decide against the words to find defendant guilty, but what law and the facts, and that is all there I say amounts to that.” was left for them after the defendant In my opinion, such a charge is a and his witnesses took the stand. If the moral command; and, being yielded to, defendant suffered any wrong, it was substitutes the will of the judge for the purely formal, since, as we have said, conviction of the jury. The law, which, on the facts admitted, there was no in a criminal case, forbids a verdict didoubt of his guilt. Act of February 26, rected “in so many words," forbids such 1919, chap. 48, 40 Stat. at L. 1181, Comp. a statement as the above." Stat. $ 1246, amending § 269 of the It is said that if the defendant sufJudicial Code; Act of March 3, 1911, fered any wrong, it was purely formal; chap. 231, 36 Stat. at L. 1087.

and that the error is of such a character Judgment affirmed.

as not to afford, since the Act of Feb

ruary 26, 1919, chap. 48, 40 Stat. at L. Mr. Justice McReynolds dissents. 1181, Comp. Stat. § 1246, a basis for re

versing the judgment of the lower court. Mr. Justice Brandeis, dissenting:

Whether a defendant is found guilty by It has long been the established prac- a jury, or is declared to be so by a tice of the Federal courts that, even in judge, is not, under the Federal Consticriminal cases, the presiding judge may tution, a mere formality. Blair v. Unitcomment freely on the evidence and ex, ed States, 154 C. C. A. 137, 241 Fed. 217, press his opinion whether facts alleged 230. The offense here in question is have been proved. Since Sparf v. punishable by imprisonment. Congress United States, 156 U. S. 51, 39 L. ed. I would have been powerless to provide 343, 15 Sup. Ct. Rep. 273, 10 Am. Crim. for imposing the punishment except upRep. 168, it is settled that, even in crimi- on the verdict of the jury. Callan v. nal cases, it is the duty of the jury to Wilson, 127 U. S. 540, 32 L. ed. 223, 8 apply the law given them by the presid- | Sup. Ct. Rep. 1301; Thompson v. Utah, ing judge to the facts which they find. | 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. But it is still the rule of the Federal Rep. 620. I find nothing in the act to courts that the jury in criminal cases indicate that it sought to do so. renders a general verdict on the law and

Because the presiding judge usurped the facts; and that the judge is without the province of the jury, I am unable to power to direct a verdict of guilty although no fact is in dispute. United concur in the judgment of the court. States v. Taylor, 3 McCrary, 500, 11 Fed. 470; Atchison, T. & S. F. R. Co. v. Unit- The CHIEF JUSTICE and Mr. Justice ed States, 27 L.R.A.(N.S.) 756, 96 C. C. Day concur in this dissent. A. 616, 172 Fed. 194. What the judge is forbidden to do directly, he may not

1 Compare People v. Sheldon, 156 N. Y. do by indirection. Peterson v. United 268, 41 L.R.A. 644, 66 Am. St. Rep. 564, States, 130 C. C. A. 398, 213 Fed. 920. 50 N. E. 840, 11 Am. Crim. Rep. 545; State The judge may enlighten the under v. Bybee, 17 Kan. 462, 2 Am. Crim. Rep. standing of the jury, and thereby in- 449; Meadows v. State, 182 Ala. 51, 62 So. fluence their judgment; but he may not 737, Ann. Cas. 1915D, 663; Randolph v. use undue influence. He may advise; he Lampkin, 90 Ky. 551, 10 L.R.A. 87, 14

S. W. 538; McPeak v. Missouri P. R. Co. may persuade; but he may not com

128 Mo. 617, 30 S. W. 170, 4 Am. Neg. Cas. mand or coerce. He does coerce when. 806; State v. Tulip, 9 Kan. App. 454, 60 without convincing the judgment, he Pac. 659; Lively v. Sexton, 35 Ill. App. overcomes the will by the weight of his 417. See Starr v. United States, 153 U. S. authority. Compare Hall v. Hall, L. R 614, 626, 38 L. ed. 841, 845, 14 Sup. Ct. 1 Prob. & Div. 481, 482, 37 L. J. Prob. | Rep. 919.

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